Last Updated on April 27, 2019 by LawEuro
FIFTH SECTION
DECISION
Application no.70243/11
Gocha DZASOKHOV
against Georgia
The European Court of Human Rights (Fifth Section), sitting on 19 March 2019 as a Committee composed of:
André Potocki, President,
Mārtiņš Mits,
Lәtif Hüseynov, judges,
and Milan Blaško, Deputy Section Registrar,
Having regard to the above application lodged on 21 October 2011,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Gocha Dzasokhov, is a Georgian national, who was born in 1971 and lives in Tbilisi. He was represented before the Court by Mr I. Bibilashvili, a lawyer practising in Tbilisi.
2. The Georgian Government (the Government) were represented by their Agent, Mr B. Dzamashvili, of the Ministry of Justice.
A. The circumstances of the case
3. At the material time, the applicant owned 90% of the shares in a limited liability company, “Georgian Product”. The remaining 10% were owned by A.I., who also held the post of director general of the company.
4. On 19 March 2010 the applicant was charged in absentia with several financial offences in connection with the activities of his company. On 12 August and 16 September 2010 those charges were amended to include aggravated fraud, embezzlement, incitement to forge and forgery of an official document, and the purchase and use of a falsified document – offences under Articles 180 § 3 (b), 182 § 3 (b), and 362 § 2 (b) (three distinct incidents) of the Criminal Code of Georgia.
5. By a decision of 8 October 2010 the Tbilisi City Court convicted the applicant as charged and sentenced him to thirteen years and nine months’ imprisonment and a fine in the amount of 1,000,000 Georgian laris (GEL). His conviction, particularly in connection with the embezzlement and fraud incidents, was based primarily on a pre-trial statement given by A.I. The latter was charged in related but separate criminal proceedings and concluded a plea-bargain agreement with the prosecution, which was approved by a court on 12 August 2010. As a result he received a conditional three-year sentence. During the first-instance court proceedings the applicant’s lawyer requested that A.I. be examined in court. However, the prosecution failed to secure A.I.’s appearance, claiming that he had left the country.
6. The applicant’s conviction was also based on a statement given by Kh.S., an independent auditor who also entered into a plea bargain with the prosecution and likewise received a conditional three-year sentence. The applicant’s lawyer argued that both of the above-mentioned witnesses were unreliable, since at various stages of the investigation they had given contradictory statements. It was only after having entered into cooperation with the prosecution in exchange for more lenient sentences that they had testified against the applicant. The first-instance court dismissed this argument by the defence as unsubstantiated.
7. The applicant’s conviction was upheld on appeal by the Tbilisi Court of Appeal on 8 February 2011. In connection with the convictions of the two main witnesses, A.I. and Kh.S., the Court of Appeal referred to the respective court decisions and held as follows:
“The chamber is of the view that the above-mentioned verdicts issued with respect to [A.I. and Kh.S] have entered into force and shall be considered as having a res judicata effect. The chamber, considering these verdicts to be lawful (there being neither a legal nor a factual basis to consider them unlawful) in accordance with Article 113 of the Criminal Code of Georgia, will treat the facts established by those verdicts and their legal analysis as binding upon it.”
8. On 11 May 2011 the Supreme Court of Georgia dismissed the applicant’s appeal on points of law as inadmissible.
9. In the meantime, according to the case file, on 10 December 2010 the Tbilisi City Court, in a separate but related set of civil proceedings, ordered the applicant, having regard to his conviction, to pay a fine of GEL 9,897,453 (approximately 3,500,000 euros (EUR)) in favour of the Ministry of Finance.
10. On 10 May 2013, by virtue of an amnesty law of 28 December 2012, the applicant’s prison sentence was reduced to eight years, six months, and 22 days. On 12 June 2015 the President of Georgia pardoned the applicant, discharging him from serving the remainder of his prison sentence. It appears from the case file that until being pardoned in 2015 the applicant had been on the run.
B. Developments after notice of the case was given to the Government of Georgia
11. On 21 August 2014 criminal proceedings were initiated in respect of an alleged abuse of power by various public officials during the investigation and prosecution of the criminal case against the applicant. On 5 December 2017 the applicant was granted victim status in the context of the above proceedings.
12. On 8 December 2017 a prosecutor from the Main Prosecutor’s Office lodged an application with the Tbilisi Court of Appeal requesting, on the basis of Article 310 of the Code of Criminal Procedure, that the criminal proceedings against the applicant be reopened. In substantiating his request, he referred, among other things, to a number of serious procedural irregularities that had taken place during the criminal proceedings conducted against the applicant. Hence, the prosecutor noted that according to A.I., the latter had been forced into giving incriminating evidence against the applicant; and moreover he had been allowed by the probation services to leave Georgia so that to avoid an examination in court.
13. On 20 June 2018 the Tbilisi Court of Appeal, having heard the applicant and all the witnesses, including A.I., reversed its decision of 8 February 2011 and acquitted the applicant of all offences. The court found, among other things, that unlawful pressure had been exerted on various witnesses during the initial set of criminal proceedings conducted against the applicant. It thus concluded that the applicant’s initial conviction had been wrongful.
14. In its decision of 20 June 2018 the Tbilisi Court of Appeal also explicitly referred, in the operative part of the decision, to the applicant’s right to request compensation on the basis of Article 92 of the Code of Criminal Procedure for any damage suffered.
C. Relevant domestic law
15. Article 92 of the Code of Criminal Procedure provides that any person who has suffered damage as a result of an unlawfully conducted procedural measure or unlawful decision has a right to claim damages via civil or administrative proceedings.
16. Article 423 § 1 (d) of the Code of Civil Procedure provides for a right to request that the civil proceedings be reopened based on newly discovered circumstances if “the court decision … that formed the basis for an impugned decision was revoked.”
COMPLAINTS
17. The applicant complained under Article 6 §§ 1 and 3 (d) of the Convention that the criminal proceedings conducted against him had been unfair on account of the fact that the key prosecution witness in the case against him had not been questioned in court.
THE LAW
18. The Government submitted that the application should be rejected as being incompatible ratione personae with the Convention on the grounds that, as a result of the acquittal of the applicant following a retrial at which all the main witnesses, including A.I., had given evidence, the applicant could no longer claim to be a “victim” within the meaning of Article 34 of the Convention. As to the applicant’s complaint concerning the outcome of a set of related but separate civil proceedings (see paragraph 19 below), the Government claimed that those allegations had not formed part of the applicant’s initial complaint as lodged with the Court and notice of it had not been given to the parties in accordance with Rule 54 § 2 (b) of the Rules of Court. Therefore, it fell outside the scope of the current case.
19. The applicant disagreed. He stressed that the decision of the Tbilisi City Court dated 10 December 2010, imposing a fine of GEL 9,897,453 on the applicant, had been based on his conviction. He could not appeal against it unless the Court delivered a judgment finding a violation in his case. The applicant thus claimed that he retained the status of a victim within the meaning of Article 34 of the Convention.
20. The Court reiterates that a decision or measure favourable to an applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, for example, Cocchiarella v. Italy [GC], no. 64886/10, § 71, ECHR 2006-V). In the context of the criminal-limb guarantees of Article 6, full acquittal or discontinuation of the proceedings against the applicant have been regarded as appropriate redress. However, this is the case when an applicant is no longer affected and has been relieved of any effects to his disadvantage. An applicant can maintain his victim status if he has already served all or part of his sentence and no compensation has been offered or is available for the alleged violation (see Sakhnovskiy v. Russia [GC], no. 21272/03, § 71, 2 November 2010, with further references therein).
21. The Court notes that the only basis on which the applicant claimed to have retained the status of a victim in the current case was the outcome of the civil proceedings that had ended on 10 December 2010 (see paragraph 9 above). The applicant referred to these proceedings for the first time in his letter of 23 July 2018 that is two and a half years after notice of his application had been given to the Government. The Court thus agrees with the Government that these proceedings clearly fall outside the scope of the current case. In any event, the applicant had an opportunity under Article 423 of the Code of Civil Procedure to request the reopening of the proceedings in question on the grounds that his conviction has been overturned (see paragraph 16 above). The applicant failed to explain why he had not availed himself of that opportunity.
22. As to whether the applicant can claim to be a victim within the meaning of Article 34 of the Convention in view of the circumstances of the case as pending before the Court, the latter notes the following: in the current case, the applicant was fully acquitted following a retrial. His main complaint concerning his conviction being based on a statement of an absent witness was remedied, as the absent witness, along with many other witnesses, was heard in court. Moreover, the Tbilisi Court of Appeal in its decision acknowledged a number of procedural irregularities that had taken place during the applicant’s prosecution and trial (contrast Dalban v. Romania [GC], no. 28114/95, §§ 41-45, ECHR 1999-VI) and concluded that the applicant’s initial conviction had been wrongful (see paragraph 13 above). Such an acknowledgment, in the Court’s opinion, given the scope of the retrial and its outcome, satisfies the first condition laid down in the Court’s case-law (see Hammerton v. the United Kingdom, no.6287/10, § 132, 17 March 2016; see also, mutatis mutandis, Staykov v. Bulgaria, no. 49438/99, § 90, 12 October 2006, and Akin Peker v. Turkey (dec.), no. 50702/18, § 17, 22 January 2019; contrast Pisano v. Italy (striking out) [GC], no. 36732/97, §§ 37-38, 24 October 2002). In this connection, the Court cannot overlook the fact that the applicant was at large throughout the relevant period of time and was never in fact imprisoned (see, a contrario, Hammerton, cited above, §§ 135-37, and Yefimenko v. Russia, no. 152/04, § 98, 12 February 2013).
23. Turning to the second condition, the Court notes that Article 92 of the Code of Criminal Procedure provides for compensation in circumstances such as those in the applicant’s case (see paragraph 15 above). This form of redress available to the applicant was explicitly referred to by the Tbilisi Court of Appeal in the operative part of its decision (see paragraph 14 above). The applicant did not claim in his submissions that he had been prevented from lodging such an action for any reason (see Ekimdjiev v. Bulgaria (dec.), no. 47092/99, 3 March 2005; see also Chervonenko v. Russia, no. 54882/00, § 37, 29 January 2009).
24. In view of all the above considerations, the Court concludes that the applicant can no longer claim to be a victim of the alleged violation of the Convention, as required by Article 34 of the Convention.
25. Accordingly, the complaint under Article 6 §§ 1 and 3 (d) of the Convention is incompatible ratione personae with the provisions of the Convention, within the meaning of Article 35 § 3, and must be rejected in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 11 April 2019.
Milan Blaško André Potocki
Deputy Registrar President
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